Griffin v. Thompson

A marshal has no, right to receive bank notes in discharge of an execution . unless authorized to do so by the plaintiff. .If the marshal does receive such papers,-the court, in the! exercise of its power to correct the irregularities of its officer, will refuse amotion of-the defendant to have satisfaction entered on the judgment, and refuse also to quash a second fieri facias. Upon a.certificate-of division from the judges of the. Circuit Court for the southern district pf Mississippi.

This was a motion made' by Thomas Griffin and Hugh Erwin to havé -satisfaction- entered on an execution offieri facias, which issued from the clerk’s office' of the court against them on the 4th day of June, 1840, in favour of Robert Thompson, for the sum of $>1*740 02, with interest thereon at the rate pf 8 per cent, per annum, from the 7th day of November,-1839, until 'paid, together with costs. And also to quash an execution oí fieri fiadas' which issued against them. in favour of said Thompson, on the samp judgment, on the 6th day of November, 1841. In support, of this motion, the plaintiffs below read in evidence first, an execution offt-fa- numbered 874, which was sued out of the court against Griffin in favour of Thompson on the 1st day of January, 1840, returnable on the 1st Monday of May ensuing, for the sum of $1740 .02 and the costs, this being the amount of a judgment recovered in the court on the 7th day of November, 1839. Upon this execution was'endorsed the return of the marshal, dated May the 4th, 1840, setting forth the levy of that process on the 25th of March, 1840, on .certain subjects of property, the execution of a forthcoming bond by. Griffin with Ervin as surety fpr'the delivery of the property at the-day and place of sale, and the forfeiture of the bond by the failure of • the obligors, to. comply with its condition. Accompanying this return is a receipt in these words: January 2d, 1840. Received on this execution one-thousand dollars in post-notes of the Mississippi Uniqn Bant. Wm. M. Gwin, Marshal, By his deputy, Jno. F. Cook. The plaintiffs next, produced in evidence, their forfeited forthcoming bond with the execution offieri fiadas sued thereon, in favour of Thompson, on the 4th of June, 1840, returnable to the 1st Monday of November with the following endorsements and returns thereon, vizi: ■ Endorsement on Fi. Fa. Ño security of any kind is to be taken. This execution is entitled to a credit of one thousand dollars, paid 2d January, 1840, in Union post-notes. See marshal’s return.onft.fia. Ño. 874, to May term, 1840. (Signed) Wm. Burns, CPk. Marshal’s Return. Made on this case four hundred dollars, Nov. 3d, 1840. Received balance of this, case, in full for costs, &c., say five hundred and fif- ■ teen dollars. Wm. M. Gwin, Marshal, . Nov. 3d, 1840. By W. L. Batto ‘ Dept. They then read in support of their motion the-execution of fieri fiadas sued forth against them in favour of Thompson, .on the 6th day of November, 1841, which execution is the same that the plaintiff in the court below moved to quash. Upon it is the following endorsément:. Endorsement. This execution is entitled' to a credit of $803 47, paid 3d November, 1840, on fi.fa. No. 451, to Nov. term, 1840. No security of any kind is to be taken for balance. W. H. Brown, CPJc. Marshal’s return, stayed by supersedeas,’ received April 1, 1842. A. Miller, Ml. By dept. J.- S. Gooch. They then read in evidence to the court the following receipts which were proved to be signed by,- and in the handwriting of, John F. Cook, who, at the date of said receipts, and before, was' a deputy of William M. Gwiri, marshal .of the southern district of' Mississippi, which receipts are in the words and figures following, to wit: Received of Thomas Griffin the sum of eight hundred dollars, to be applied to part payment of an execution obtained vs.- him at the Nov', term, 1839, of Circuit Court United States'as security for T. Griffin, which amount I am to credit said execution with. December 10th, 1839. W. M. Gwin, Marshal, By his deputy, Jno. F. Cook: " Received of Thomas Griffin the sum of two hundred dollars in Union Bank money, to be applied to a certain execution I hold vs,. said Griffin, or I am to-return the said money, to the said Griffin. Feb’y 17th, 1840. Jno. F. Cook. The said sums'of $8Q0 and $200, mentioned in said receipts, constituting the $1000 in post-notes of the Mississippi Union Bank, returned by the marshal as received oh 2d of January, 1840, on execution offidri facias heréin-before referred to, dated 1st January, 1840. They also read in evidence tp the court the-following additional receipts, to wit: Thompson. ■v. ) Circuit Court U. S. fi.fa. to Nov. term. 1840Griffin and Surety, . Received of Thomas Griffin in the above stated case, the sum of four-hundred dollars in Louisiana money. • Nóv; 3d, 1840. ’ W, M. Gwin, Marshal, Per deputy, Jno. F. .Cook. Received of Thomas Griffin the sum of five hundred dollars, to ' be applied to the payment of an execution, in the hands of the marshal, of Thompson v. Thomas Griffin and sureties. Nor. 1840. Wk. M. Gwin, Marshal, By his deputy Jno. F. Cook. The said Robert Thompson then, in opposition to said motion, read in evidence to thg .court, the judgment pronounced at its November term, 1841, quashing so much of the return of the marshal made on the execution of fieri facias numbered 874, whiqh issued on .the 1st day of January, 1840, as stated that he had.“ received on said execution one thousand dollars in post notes .of the Mississippi Union'Bank,” which jhdgment is in the words and figures following, to wit: “Robert Thompson v. Thomas Griffin.) Motion by the plaintiff to quash that part of thé marshal’s return on fi. fa. No. 874, to May term, 1840, which is as 'follows: ? January 2d, 1840. Received on this execution one thousand dollars in post notes of the Mississippi Union Bank.’ “Motion sustained and said marshal’s return on said.fi.fa. quashed, and an alias fi. fa. ordered, to May term, 1842.” The said Thompson then introduced Joseph Holt as a witness, who being .sworn, stated that he was one of the plaintiff’s attorneys of record, Who obtained the said judgment of $1740 02' against said Thomas Griffin, at the November term, 1839, ofthe court; and that as the attorney of record of the said plaintiff, (Robert Thompson,) he had full authority to collect said judgment, and to control the executions which might issue thereon; that, supposing the execution bn s'aid judgment when issued would come ihto.the hands of the said “Jno. F.-Cook',” deputy marshál;- he had a conversation with him a short time after the judgment was rendered, say some time in the month of November, 1839, in .which he notified the said Cook distinctly, that good money would be required to be collected on said judgment, and that he must receive no other kind of money on the execution, when it should come into his hands. That he saw said Cook several, times during the ensuing winter, but that he (Cook) never mentioned to him that he had made any collection on said judgment. That the first knowledge or intimation witness had of the'receipt of the $1000 in post-notes of the Mississippi Union Bank, mentioned m the return of the said Cook on the execution as collected 2d January, 1840, was in the month of May, 1840, when going into the , marshal’s office at Jackson, Mississippi, he found the said execution had just been returned, with the receipt of the $1000, in post-notes of the- Mississippi Union Bank, endorsed thereon as aforesaid. Witness at once refused to receive said post-notes from the marshal, in part satisfaction of said, execution, and-has ever since refused, and still refuses to receive them. Witness further stated, that at the time . referred to, (May, 1840,) sai.d post-notes had greatly depreciated in value, and were not-worth more than fifty cents to the dollar, and ■ that on the 17th of Fébruaiy, 1840, said post-notes Were worth but seventy-five cents to the dollar. That .he immediately entered a motion to quash said return of the said deputy marshal, (Cook,) which motion was sustained by the court at its November tenn, 1841. Witness further stated that in' a conversation he had held with said Thomas Griffin, he (Griffin) had stated that the $800 mentioned in said receipt, dated 10th December, 1839., and the $200 mentioned in said receipt, dated 17th February, 1840, constituting together the $1000 returned ás made .on .2d January, 1840* in “ post-notes of the Mississippi Union Bank,” were paid by him to said John F. Cook, deputy marshal as aforesaid, at tipies mentioned .in the said receipts respectively, in post-notes of the said Mississippi Union Bank. It was also in proof that, on the 10th day of December, 1839, the post-notes of the Mississippi .Union Bank were current in the state of Mississippi, and were generally received by the sheriffs and marshal unless instructions to the contrary were given by plaintiffs or their attorneys. It was also ¡admitted that Griffin had no actual.notice of the instructions given, by the plaintiff’s attorney in this case to said John F. Cook, deputy marshal. This was all the evidence offered either in support or in opposition'to the plaintiff’s motion. Whereupon on the question .whether satisfaction should bp entered on said execution of fieri facias, which was sued out on the 4th of June, 1840, in favour of said Robert Thompson v. Thomas Griffin ¿nd Hugh Ervin for the sum of $1740 02 with interest and costs as aforesaid; and'also on the question whether said execution offieri facias which was -sued out against the said Griffin and Ervin on the 6th of November, 1841, should be quashed, the judges were opposed in opinion, and the questions were ordered to be certified to this court for decision. The cause was argued, by Henderson for Griffin, the defendant in the original suit below, who had made the motion to have satisfaction entered on the judgment and to quash the second fieri fados ; and by Harrison and Holt for Thompson, the plaintiff below.